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आयकर आयकर आयकर अपीलीय आयकर अपीलीय अपीलीय अिधकरण अपीलीय अिधकरण अिधकरण, अिधकरण " ए” खंडपीठ खंडपीठ खंडपीठ मुंबई खंडपीठ मुंबई मुंबई मुंबई INCOME TAX APPELLATE TRIBUNAL,MUMBAI-“A”,BENCH सव"ी राजे"", लेखा सद"य एवं एवं एवं संजय गग", "याियक सद"य एवं Before S/Sh. Rajendra,Accountant Member & Sanjay Garg,Judicial Member आयकर आयकर अपील अपील संसंसंसं/.ITA No.3475/Mum/2012,िनधा"रण िनधा"रण वष" वष"/Assessment Year-2008-09 आयकर आयकर अपील अपील िनधा"रण िनधा"रण वष" वष" Shri Ashish C. Singhania The Income tax Officer-12(3)-1 72-A, Mittal Tower, 7th Floor Vs Mumbai. Nariman Point,Mumbai-400 021. PAN:AAFPS 5268 K (अपीलाथ" /Assessee) (""यथ" / Respondent) िनधा"रती िनधा"रती ओर ओर सेसेसेसे/Assessee by िनधा"रती िनधा"रती ओर ओर : Shri Beharilal राज"व क" ओर से/ Revenue by : Ms. Vinita J. Menon सुनवाई सुनवाई सुनवाई क" सुनवाई क" क" तारीख क" तारीख तारीख / Date of Hearing :16- 09-2015 तारीख घोषणा क" तारीख / Date of Pronouncement : 28-10-2015 आयकर आयकर आयकर अिधिनयम आयकर अिधिनयम अिधिनयम,1961 अिधिनयम 1961 क" धारा क" धारा क" धारा 254 क" धारा 254(1)के अ"तग"त आदेश के अ"तग"त आदेश के अ"तग"त आदेश के अ"तग"त आदेश 1961 1961 254 254 Order u/s.254(1)of the Income-tax Act,1961(Act) लेखा सद"य राजे"" के अनुसार लेखा सद"य राजे"" के अनुसार PER RAJENDRA, AM- लेखा सद"य राजे"" के अनुसार लेखा सद"य राजे"" के अनुसार Challenging the order dt.16.04.2012 of CIT(A)-23,Mumbai,the assessee has filed the present appeal.Assessee,an individual,filed his return of income on 31.07.08,declaring income of Rs. 67.59 lacs.The Assessing Officer(AO) completed the assessment on 27.12.2010 u/s.143(3) of the Act,determining the income of the assesse at 69.98 lacs. 2.Effective ground relates to treatment of short term capital gain(STCG)as business income, amounting to Rs.63,53,055/-.During the assessment proceedings,the AO noted that the assessee had declared STCG of Rs.63,53,055/- arising from the sale and purchase of shares, that he had churned portfolios of shares within a short span of time,that there was rapid frequency of purchase and sale of shares of scrips of few companies,that he purchased shares of value of Rs.8,70,27,899/- and sold shares for a sum of Rs.9,45,35,397/-.A show cause notice was issued to the assessee requiring him to explain as to why the STCG of Rs.63,53, 055/-should not be treated as business income.In response, it was submitted that the assessments for A.Y. 2005-06 to 2007-08 were completed under section 143(3) of the Act accepting the claim of the that the income arising out of share transaction was to be taxed under the head capital gains.The assessee relied upon decision of Gopal Purohit. The AO held that the principle of res-judicata and doctrine of estoppel were not applicable to income tax assessment proceedings,that the Hon'ble Court had decided the issue in the above case on facts and not on law,that the assessee's reliance on the judgment of Gopal Purohit was misplaced.The AO observed that the transactions involved a turnover of Rs.9,45,53,397/-,that share transactions were entered in to for earning the profits from trading in shares ,that the holding of the scrips in the demat account was not a conclusive proof of characteristic of investment,that surrounding factors had to be appreciated,that the dividend income to the tune of Rs.71,490/- had been earned by the assessee on an investment of approximately Rs.1,56, 09,258/-,that if assessee's intention were to hold such shares as investments then he certainly would have held the shares for a longer period to entail earning of dividend income therefrom,that the dividend received by the assessee was only incidental to the activity of trading in shares and not a conscious effort made by him by making investments,that the profits relating to the business venture of sale and purchase of shares were assessable as profits and gains of business,that he had entered into numerous transactions in the year 1
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involving sale of shares of a turnover of Rs. 9,45, 53, 397/-,that the frequency of these transactions clearly indicated that there was no intention for keeping it as an investment,that treatment in the books of account could always be made by the assessee with the intention of giving it the colour of what he desired,that where there was a repetition and continuity coupled with the magnitude of the transaction bearing reasonable proportion to the strength of holding then an inference could readily be drawn that the activity was in nature of business,that the activity conducted by the assessee was a business activity involving regular transactions of purchase and sales,that the frequency, continuity and magnitude of the transactions in relation to his investment value was clearly indicative of the fact that his activity was of sale and purchase of equity shares for earning profit and not for holding as investments,that he had entered into 220 transactions of sale on which he earned net short term capital gain of Rs.63,53,055/-,that shares had been held for very short duration,that he had applied for shares in the primary market and had earned good income,that he applied for shares offered in public issues of M/s Mundra Port and Special Economic Zone Ltd. and M/s Nitin Fire Protection Industries Ltd. in which the assessee paid sum of Rs.49.99 crores and Rs.40crores respectively as application money,that he was allotted 7430 and 21358 shares in these two companies which were sold by him immediately making gain of Rs.42,49,268/- ,that he had also taken loans totaling to Rs.2,51,45,708/- on which he had paid interest of Rs.9,52,959/-,that all these facts conclusively proved that the assessee acted like a prudent businessman who look market risks to earn profits. Accordingly,[ of Rs.63,53,055/- was treated as business income of the assessee by the AO. 3.In appeal proceedings before the First Appellate Authority(FAA,it was submitted that the assessee had been purchasing the shares with the intention of investment,that he was maintaining regular books of accounts and the purchase of shares had always been shown as investment in the accounts,that the earlier year's balance sheets showed that the shares purchased were shown under the head investments and income arising on sale of such shares had always been taxed under the head capital gains,that the assessment order for earlier three years were completed u/s 143(3) of the Act,after verification of his claim for short term and long term capital gain on sale of shares had been accepted by the AO,that there was no change in the facts and circumstances of the case in comparison to the earlier years and therefore the capital gain on sale of shares should be accepted,that the principles of res judicata did not apply yet rule of consistency did apply,that the entries in the books of the assessee clearly showed that the shares had been treated and disclosed as investment and not as stock-in-trade,that the size of the portfolio or the magnitude of the investment was wholly irrelevant to determine whether the assessee was an investor or a dealer in shares,that an investor had to divest the shares at the most opportune time because he had to weigh the risk and the cost of carrying the investment with the returns thereon,that merely because so many shares happened to be sold in one year did not mean that the gain arising therefrom was in the nature of business income,that mere volume of transactions would not alter the nature of transactions unless the surrounding circumstances supported the same,that period of holding was sufficiently long enough to justify the capital gain,that if the gain arising from sale of shares held by an assessee for any period less than a year were to be treated as business income then the category of short term capital gain and the entire scheme for taxation thereof would become otiose and meaningless,that he borrowed the money for the purpose of investment in shares only to the extent of making application in public issue of the companies,that he allowed own funds as well as borrowed money and paid interest of Rs.52, 97,430/-,that apart from the above there was no other borrowing for acquire of any other shares by the assessee,that he also received interest of Rs.2,26,715/- from partnership firm 2
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and other and therefore the net interest of Rs.7,26,245/- had been debited to the capital account,that merely because certain money was borrowed for investments the same could not be treated as business asset and consequently capital gain couldnot be treated as business income. The FAA considered AO's order, submissions made for the assessee and materials on record and referred to the cases of Associated Industrial Development Co. P. Ltd.(82 ITR 586) and H Holck Larsen(160 ITR 67)and the Circular No.A/2007 dated 15/06/2007 issued by the CBDT.He held that the principle of res judicata was not applicable to income tax proceedings and the nature of transactions is to be adjudged on the basis of the facts and circumstances in each year,that in the present day scenario of transactions in BSE/NSE over computer and direct credit/debit in demat accounts the fact of delivery could not be the major basis for claiming that taking of delivery necessarily implied that the transaction was one of investment,that though the converse fact of non-delivery would have strong implications of treating the transaction as a business transaction,that delivery was not only criterion in deciding the issue,that treating the entries in the books of account as investment would not itself be proof that the same were of investment, that the intention of the assessee was the main criteria to decide the nature of the share transaction. The FAA referred to the case of Harsha & Mehta (ITA No.1859/Mum/2009 dated 16.7.2010), Immortal Financial Services P.Ltd.(8 Taxman. Com.32)and Nagesh (ITA/ 5410/Mum/2008 AY.2005-06 dated 24.09. 2009)and dismissed the appeal filed by the assessee.
Before us,the Authorised Representative(AR) argued that the facts of the case for the year under appeal are same as the facts of the earlier year. We refer to the orders for the A.Y.s 2005-06-2007-08 (page no. 20-28 of the paper book), that the assessee had return back the borrowed money that it had sufficient own funds, that the profit earned by sale of shares held for short duration was less than 10%. He referred to the cases of Shri. Hitesh Satishchandra Joshi ITA 6497/Mum/2009 A.Y. 2003-04 & 2006-07 dated 15.06.2011, Shri. Mahendra C.Shah ITA 6289/Mum/2008, Shri. Nagindas P. Shah (HUF) ITA 961/Mum/2010 and Gopal Purohit P36 ITR 287. .contended that .The Departmental Representative (DR) argued that 5.We have heard rival submissions and perused the material before us.We find that the issue to treat income arising out of share transactions as business income or income from other sources,is not easy to decide.The Hon’ble courts have laid down certain parameters to decide the issue.It is true that each single criterion is not to be seen in isolation, but the entire holistic picture of the facts and circumstances has to be looked into to decide as to whether the transactions represent trade or investment.In our opinion,the intention of the assessee is deciding factor to hold share transaction business or investment and intention of a person cannot be gathered by considering only one factor-it has to be gathered from the surrounding facts and circumstances.We find that the AO and the FAA have pointed out the magnitude of the transactions and the period of holding of shares,that they have found that the assessee had dealt in 23 scrips involving approximately 67 purchase transactions and equivalent number of sale transactions,that the holding period was small in several instances,that the repetitive buying after sales had been seen in 1/5th of the scrips dealt in.They have given a categorical finding of fact that the assessee had re-entered the market for purchasing scrips after having sold his earlier holdings,with a few intraday sales as well in the cases of Atlanta (purchase within 7 days of sale), EID Parry India Ltd. (within 16 days of sale), IClCI Bank (within 6 days of sale), NitinFire (intra day and repeated buying), Tech Mahendra Ltd.(within 4 days of sale). We agree with the views of the FAA that entering the market again after disposing of 3
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one's holding is a clear indication of the intention of the assessee to trade in the shares and not hold them as investment.In our opinion,the assessee had not merely offloaded his shares, but had tried to take advantage of the volatility of the market to maximise his profits by repeated buying and selling of the volatile shares.The assessee has not denied the fact that it had used borrowed funds.In our opinion,use of borrowed funds(Rs.87 crores)is a strong indicator that the activity was a business activity not an investment activity. The assessee had claimed that the borrowings have only been for transactions relating to IPOs i.e. funds have been used for making application for the IPO. Application in IPOs cannot per se be said to be for investment purposes only.The intention of the assessee is brought out by the fact that out of the scrips obtained through IPO the assessee sold the scrips almost as soon as they were allotted,within a few days of allotment/receipt.The behavior of the assessee in dealing with the IPO clearly shows that he had never any intention of holding on to the allotted scrips for any length of time,that there was no intention of making investment at the time of subscription to the IPO. We also agree with the AO and the FAA that the principle of res judicata is not applicable to income tax proceedings and the nature of transactions is to be adjudged on the basis of the facts and circumstances in each year.Facts of the earlier years were not placed on record except stating that in earlier years the income on sale of shares was not assessed as business income.But,it is not sufficient to decide the issue.Whether in the earlier years the assessee had held shares for very short duration or whether the assessee has entered in to repetitive transactions is not known.It is also not proved that he had borrowed heavily to invest in IPOs that were sold within a short span of time.Until and unless all these facts are not proved positively,the earlier years’ assessment cannot be of any help.We are deciding the issue for the year under appeal after considering the facts for that year only.After considering all the relevant factors cumulatively we are of the opinion that the share transactions entered into during the year cannot be assessed under the head income from other sources.
We have considered the facts of the cases relied upon by the assessee and we find that in those cases the Tribunal had decided the issue in favour of the assessee after considering the peculiar facts of those cases for those particular years.We also know that in certain cases,as referred by the FAA,similar issue has been decided against the assessee.But,we will not take support of those cases also to decide the issue before us.We are deciding the issue considering the intention of the assessee and for that we have taken into consideration is the magnitude of the transactions,frequency of share transactions,holding period,intra-day sales in a few instances,the repetitive nature of transactions,utilisation of borrowed funds,sales of IPO scrips immediately after allotment.In short,we are of the opinion that the order of the FAA does not suffer from any legal or factual infirmity.Therefore,confirming the same,we decide effective ground of appeal against the assessee. As a result, the appeal filed by the assessee stands dismissed. फलतः िनधा"रती "ारा दािखल क" गई अपील नामंजूर क" जाती है. Order pronounced in the open court on 28th ,October,2015. आदेश क" घोषणा खुले "यायालय म" "दनांक 28 अ"टूबर,2015 को क" गई । (संजय गग" / Sanjay Garg) (राजे"" / RAJENDRA) "याियक सद"य / JUDICIAL MEMBER लेखा लेखा लेखा सद"य लेखा सद"य सद"य / ACCOUNTANT MEMBER सद"य मुंबई/Mumbai,"दनांक/Date:28.10.2015 व.िन.स.Jv.Sr.PS. 4
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आदेश क" क" "ितिलिप "ितिलिप अ"ेिषत अ"ेिषत/Copy of the Order forwarded to : आदेश आदेश आदेश क" क" "ितिलिप "ितिलिप अ"ेिषत अ"ेिषत 1.Appellant /अपीलाथ"
Respondent /""यथ" 3.The concerned CIT(A)/संब" अपीलीय आयकर आयु", 4.The concerned CIT /संब" आयकर आयु" 5.DR “A” Bench, ITAT, Mumbai /िवभागीय "ितिनिध, ए खंडपीठ,आ.अ."याया.मुंबई 6.Guard File/गाड" फाईल स"यािपत "ित //// आदेशानुसार/ BY ORDER, उप/सहायक पंजीकार Dy./Asst.